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tv   Sen. Hatch Speaks at the Heritage Foundation  CSPAN  December 3, 2018 10:17am-11:29am EST

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to the point our antitrust laws take effect. do we have to take a closer look to our antitrust laws to make sure they have adapted to meet the needs of this new internet world. >> watch "the communicators" tonight at 8:00 p.m. eastern on c-span2. c-span, where history unfolds daily. in 1979, c-span was created as a public service by america's cable television companies. and today we continue to bring you unfiltered coverage of congress, the white house, the supreme court, and public policy events in washington, d.c., and around the country. c-span is brought to you by your cable or satellite provider. utah republican senator orrin hatch talked about the history of judicial confirmations and confirmation of justices brett kavanaugh and clarence thomas.
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senator hatch, a member of the judiciary committee, spoke recently at the heritage foundation. >> good evening, ladies and gentlemen. welcome to the tenth annual joseph story distinguished lecture. on behalf of the heritage foundation, and our center for legal and judicial studies, it's great to welcome all of you here tonight. tonight's event is part of our preserve the constitution
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series. which we have at this time of the year. we hold this story lecture each year in conjunction with our legal strategy forum which brings together almost 50 freedom-based public interest law organizations from around the country. it's chaired by our distinguished director of the center for legal and judicial studies, john malcolm, who's with us tonight. you'll meet him later on. the story lecture honors a distinguished american lawyer and jurist. he is described by historians as probably having one of the most distinguished and significant impacts on the early legal history of the united states and also has, indeed, according to them, has much or more influence on shaping american law than even chief justice john marshall.
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in his early career, story served before even becoming a justice, he served as a member of the massachusetts house of representatives where he was also elected speaker of the house. he was appointed to the united states supreme court by president madison in 1812. at that point, he was the youngest person to serve as an associate justice in our history and he served 33 years until his death in 1845. he was an outstanding legal scholar and even taught law at harvard university while he was on the court. joseph story is particularly remembered for the excellence of the opinions that he wrote and especially for his magisterial document, "commentaries on the constitution of the united states" which was first
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published in 1833. it's described by, again, historians as dominating the field in the 19th century and that this work is literally the cornerstone of early american jurisprudence and remains a critical source of historical information about the forming of the american republic and the early struggles to define the law of this country. these joseph story lectures which we have had over the years and particularly tonight celebrate his legacy and his continuing contribution through his writings to our nation's jurisprudence. previous lectures have featured three supreme court justices, several appellate court judges, an eminent professor of law, and tonight we're honored to have as our story lecturer, the first distinguished member of the united states senate.
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to introduce our honored guest, we are pleased to have the president of the heritage foundation. kay cole james was elected to be our president in december of 2017, not quite a year ago. she brings a wealth of experience to this position, having served on the heritage board from the year 2005 right until the present time. and certainly, she's been a major feature in the conservative movement, a major leader of that movement for more than 30 years. during that time, kay has made conservative solutions a reality at all levels of government, including the white house, and in academia. most recently, kay was the founder and served as the president of the gloucester institute, an organization dedicated to the training and nurturing of leaders in the african-american community. kay is a graduate of hampton university.
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the recipient of numerous honorary degrees and a best-selling author. most important, kay is married to charles james jr. and is the proud mother of three and grandmother of five. ladies and gentlemen, please join me in welcoming the president of the heritage foundation, kay james. [ applause ] >> thank you so much, ed. and the first thing i want to say is welcome to the heritage foundation. and as a point of personal privilege, i ask to be able to introduce our speaker tonight. this is, indeed, a special evening. he is a personal hero of mine, as well as being an american hero.
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it's a man who for over his four decades of public service has selflessly and unreservedly fought to preserve liberty in this country. but don't just take it from me. his record speaks for itself. nearly 800 of senator hatch's bills have become law. more than any other american legislator in history. that's something to be proud of. not only that, but he's been instrumental in confirming conservative judges to the federal bench and played an indispensable role in confirming one of our guests tonight, supreme court justice clarence thomas, as well as scalia, alito, gorsuch, and most recently, brett kavanaugh. but as a point of personal privilege, i have been confirmed by the united states senate three times and two of those
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times it was under the watchful eye of senator hatch. as a young conservative coming to this town, and being just absolutely mortified at the thought of sitting in front of the united states senate, to know that there was someone there who loved this country, who cared enough personally about me to take a special interest in my own confirmation hearings, meant the world. and there are several of my mentors and friends in this room tonight and i certainly count senator hatch among them. he has been a protector of our religious liberty, and that is so important, i know, to each and every one of us here. with his landmark religious freedom restoration act, he's also been a staunch defender of our constitution. one would think that you
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wouldn't have to say that about a united states senator because you would think they all are. but in this case, we know we have a defender there and one who holds our founding documents in high esteem. he's proven to be one of the most respected statesmen in the united states senate and his record of fiscal responsibility actually earned him a nickname from president reagan who called him mr. balanced budget. boy, we need you now more than ever. by all measures, senator hatch has been one of the most impactful and effective legislators of modern times. since starting in congress in 1977, until his retirement at the end of this 115th congress, he's kept the flame of liberty alive and has honorably, honorably served our nation.
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senator, we are so pleased to have you here tonight and to recognize your contribution to this country and i hope that you can feel the love and the affirmation that we all have for you. you are truly an american hero. thank you for being here. [ applause ] >> well, thank you, all, for that nice round of applause. i've been in places where it was otherwise. [ laughter ] i can hear that justice thomas' laugh all the way -- he's one of the greatest additions of the supreme court i've ever seen. i just want you all -- [ applause ] it's a real honor to be here at the heritage foundation.
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this is one of the most important institutions in our nation's capital. indeed, in the entire country. for decades, the heritage foundation has led the way in promoting policies that advance freedom, prosperity, individual responsibility, and individual liberty. been a stalwart in the fight to confirm textualist originalist judges who interpret the laws written, not make policy themselves. i'm particularly honored to have been invited to deliver this year's joseph story distinguished lecture. as you all know, justice kavanaugh delivered last year's lecture. that is a title i will never tire of saying. justice kavanaugh. [ applause ] by the way, that confirmation will go down in history as showing the despicability of the
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other side, but we won and we got him on the bench now. i couldn't be happier. as i considered what i should speak about, i thought it would be appropriate and timely to share some thoughts about the confirmation process. particularly the judicial confirmation process. some of you may not know this, but justice story was actually my very first supreme court confirmation. [ laughter ] that was when i arrived in the senate back in 1811. [ laughter ] i didn't think i was good for you guys to laugh at that. his confirmation hearing was quite an event. they threw everything they had at him. really tough questions about letters of mark, close roads, piracy and felonies committed on the high seas. the xyz affair, the louisiana
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purchase. justice story's family shop, nothing was off limits. [ laughter ] i even remember the demon spartacus made an appearance which -- [ applause ] which was, of course, a real surprise. let me tell you. travel between italy and d.c. took a lot longer back then. in seriousness, reviewing judicial nominations is one of the senate's most important duties. and it's been one of my primary focuses since i took office as a u.s. senator. i'm the former chairman and longest serving member on at least the republican side of the senate judiciary committee, i think leahy probably has me by a few months. i've seen a lot of judicial nominees in my time. in fact, i participated in the confirmation of more than half
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of article 3 judges who have ever served. a lot has changed during my time in office. i wish i could say that the confirmation process has improved, or at least stayed about the same, but it hasn't. it's declined. precipitously. the judicial confirmation process, simply put, is a mess. it hasn't always been this way. both sides used to work together. or at the very least used to try to treat each other's nominees fairly. the delay tactics that have become so commonplace used to be pretty rare. here's an amazing fact. one that's almost impossible to believe given the current state of things. before justice breyer was confirmed, he was justice breyer on the u.s. court of appeals for the 1st circuit. he was nominated to that position by president carter and he was confirmed on december
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9th, 1980. think about that date for a moment. december 9th, 1980. that was after the 1980 election. when you may recall, which you may recall, ushered in the very interesting tenure of -- of, as you all know, ronald reagan. it was a reagan revolution. not only did ronald reagan defeat president carter in the presidential race, but republicans captured the senate for the first time in 26 years. notwithstanding all that, the senate voted to confirm judge breyer in december 1980 and the vote wasn't even close. it was 80-10. only six republicans opposed judge breyer's confirmation.
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and that's not the whole of it. judge breyer wasn't even nominated until after the 1980 election. so he was both nominated and confirmed after carter lost. think about that. after carter lost the election and after democrats lost the senate. and republicans did not try to block him. they voted for him overwhelmingly. you would never see that today. no matter which party was in the white house. i'm going to focus the majority of my remarks tonight on the supreme court, but the lower courts are important as well. so i'm also going to talk about lower court nominations, and in particular, the circuit court of appeals for the district of columbia, which after the supreme court has probably been the site of most pitched battles, most pitched confirmation battles.
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as we'll see the trend lines at the supreme court level repeat themselves in the lower courts as well. when i first joined the senate in 1977, the breyer confirmation was largely par for the course. the timing was a bit unusual but the vote count was not. i was sworn into office a few weeks before jimmy carter became president. president carter did not have any supreme court nominations during his term. thankfully. [ laughter ] i shouldn't have said that, i'm sure, but i'm very thankful, anyway. but he did have four d.c. circuit nominations and those nominations were patricia wald, abner mikvah, harry edwards, and ruth bader ginsburg. we can thank jimmy carter for both stephen breyer and ruth bader ginsburg. of course, i say that in jest. they're both terrific people and highly respected jurists.
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i care for each one of them, even though they do rule the wrong way sometimes. maybe quite a bit more than i care for. the time between nomination and confirmation for all four of president carter's d.c. circuit nominees was two to three months. a bit longer than stephen breyer had to wait. not all that much longer in the grand scheme of things. what about their confirmation votes? as best i can tell from my research, judge edwards and then judge ginsburg were confirmed either by voice vote or unanimous consent. judge wald's confirmation vote was 77-21 with a majority of republicans supporting the nominee. her nomination. judge mitfa had the closest
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nomination. still a comfortable margin. after president carter came to president reagan and for a while confirmations continued largely as before. there were close votes here and there, but in the name, nominees were confirmed relatively easily and quickly and with wide support. let's start with senator day o'connor nominated by president reagan to the supreme court in 1981. justice o'connor received criticism from pro-life groups when she was nominated but her confirmation hearings went smoothly and she -- she was ultimately confirmed by a vote of 99-0. president reagan's next supreme court nomination was a twofer. when chief justice warren burger announced his retirement in 1986, president reagan decided to elevate then-associate justice william rehnquist to chief justice and name a new
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associate justice, antonin scalia, one of the all-time great justices on the court, in my opinion. let's start with justice scalia. scalia was a well-known conservative jurist who had served in both the nixon and ford administrations before joining the d.c. circuit in 1982. he had also served as the first faculty adviser for the federalist society's university of chicago chapter. he has no -- he was no stealth nominee. both sides knew exactly for the most part what they were getting. and what was his confirmation vote? 98-0. unanimous. just like justice o'connor's. justice rehnquist's confirmation process for chief justice was a bit more contentious. he had served on the court for 15 years as an associate justice, and had accumulated a string of dissents to liberal
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opinions and so democrats gave him a very difficult time. they accused him of voting intimidation from his time in private practice back in arizona. they dug up a restrictive covenant that he didn't know anything about, neither did they, by the way, until they found it was in their deeds as well. which, of course, we aptly pointed out. on a piece of property he had owned. and they fixated on a memo he'd written fof justice robert jackson, back when he was a clerk for jackson. that's how bad it was getting. you can imagine, none of these attacks stuck and rehnquist was confirmed by a vote of 65-33. the closer margin of o'connor and scalia, to be sure, but still comfortable. he won the votes of 16 democrats. roughly a third of the
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democratic caucus at the time. notably, rehnquist's nomination was the first time in history that opponents of a supreme court nomination attempted a partisan filibuster. 31 senate democrats voted to filibuster his nomination. not enough to block him, but a precedent was set. and the parties, and the partisan terrain, shifted. most of us know what comes next after rehnquist and scalia. before getting to that, i'd like to turn back to the d.c. court for a moment. it's important not to forget about the lower courts. president reagan nominated eight judges to the d.c. circuit. we should all ask god's blessing for president trump to get that many nominations. here's the list. robert bork. antonin scalia. ken starr. larry silverman.
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jim buckley. steven williams. doug ginsburg. david santel. conservative all-stars, every one. the longest time any of them had to wait between nomination and confirmation was four months. majority, in fact, were confirmed in less than two months. what about their confirmation votes? well, this will surprise you. seven of the eight were confirmed either by voice vote or unanimous consent. only judge buckley had a roll call vote and his vote was 84-11. that means a lot of president reagan's eight d.c. circuit nominees, only one received any no votes. only one. can you imagine that happening today? never. let's turn back now to the supreme court. as i discussed earlier, in 1986, justice scalia was confirmed
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98-0. and chief justice rehnquist was confirmed 65-33. even rehnquist who had faced a fairly contentious confirmation process for the time was confronted and confirmed by a 2-1 margin. then came 1987. then came bork. one of the truly greatest judges in the country at the time. maybe ever, in my eyes. ever. for those who came to age in the law or politics after 1987, it's difficult to understand what a sea change bork's confirmation process was. character assassination. shameless misrepresentations of the nominee's record. partisan warfare. it all seems so commonplace now, but it wasn't always this way. justice scalia sailed through
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98-0. 98-0. as the first italian ever nominated to the court. go back and watch justice scalia's confirmation hearings. he smoked his pipe. i won't tell you about that story. [ laughter ] and he had pleasant conversations with judiciary committee members. i'm not joking. he literally smoked a pipe. it was expected at the time that senators would treat nominees with courtesy. that they would give presidents deference on their judicial selections. that they would ask nominees pointed questions, but wouldn't try to destroy them. so imagine everyone's surprise, shock, really, when ted kennedy took to the senate floor within 45 minutes of bork's nomination and said the following.
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"robert bork's america is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the government, and the doors of the federal courts would be shut on the fingers of millions of citizens." very colorful language. kennedy is known for that. you might be thinking to yourself, sounds like what every democrat said about justice kavanaugh. well, it was unprecedented at the time. it had been less than a year since the senate confirmed justice scalia unanimously. even what rehnquist went through
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was nothing compared to what democrats did to bork. they smeared him as an extremist, an activist, and a bigot. five years earlier, he had been confirmed to the second highest court in the land by unanimous consent. now, he was the greatest threat to individual liberties. since atilla the hun. judiciary committee democrats prepared a 70-page report that grossly misrepresented judge bork's distinguished record and painted him as some sort of retrograde. bork's video rental history was even leaked to the press. in a desperate attempt to find something salacious to embarrass him with. of course, they got tired of the easygoing family shows that he was used to. regrettably, democrats succeeded in their slanderous tactics. they took one of the greatest legal minds of a generation, a
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former yale law professor, and solicitor general of the united states, and defeated him. final vote was 58-42 against confirmation. it was a dark day for our country. president reagan ultimately nominated 9th circuit judge anthony kennedy to that seat. after a fairly smooth confirmation process, justice kennedy was confirmed 97-0. the next nominee to the supreme court was david souter, the stealth nominee. having been confirmed to the 1st circuit only two months before, president george h.w. bush nominated him to the supreme court, souter had a minimal paper trail. it was virtually impossible for opponents to misrepresent his record the way they distorted judge bork's.
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mainly because he didn't have anyone. the stealth strategy was a success. at least votewise. souter was confirmed easily by a vote of 90-9. even he had nine against him. some would say the stealth strategy was somewhat less than a success. in any event, souter was the calm between two storms. next came my dear friend, clarence thomas, who is here tonight. i'm surprised he's still alive after all he went through, i'll tell you. [ laughter ] anybody with a laugh like that has got to live forever, as far as i'm concerned. in any event, souter was the calm between two storms. like i say, clarence thomas was next. i had thought, perhaps, naively, that the bork nomination was as bad as it could get. senate democrats had taken a universally admired and
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respected jurist and managed to paint him as a threat to freedom and prosperity. they twisted his record and his words until they were completely unrecognizable. then came my friend, justice thomas. it turns out that they grossly -- that grossly misrepresenting a nominee's record is only part of the playbook. there's also character assassination. justice thomas, as i think most people know, is a dear friend of mine. we're honored to have him here tonight. i'd like to make just a few points about his confirmation experience. not many people remember this, but there were actually two sets of hearings on justice thomas' nomination. the first was the standard set of hearings on his record and qualifications.
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the sort of hearings all supreme court nominees have to endure and go through. the second set was the hearings with professor hill. by the time hill came forward, justice thomas' nomination had already been voted out of committee. indeed, she went public only two days before justice thomas' nomination was scheduled for a vote. a final floor vote. and so the senate delayed the vote to hear from professor hill. you may notice some parallels here to recent events. the hearings, they were ugly, but i believe they vindicated justice thomas. i was there. and i made sure they did. the american people agreed. opinion polls taken shortly after the hearings showed that the public believed justice thomas' account overwhelmingly, as they should have. and at the end of the day, justice thomas was confirmed, as he should have been.
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one of the proudest moments of my time in the united states senate. to have him here tonight is a particular wonderful thing for me. one of the proudest moments i had in my life was defending justice thomas from the scurrilous, unfounded attacks on his character. justice thomas is a blessing to this country. i thank god every day that he is on the supreme court. [ applause ] i'm not saying this just because i may in the future appear before the supreme court. [ laughter ] but thomas, you better be on my side. at the time of justice thomas' confirmation, i had been in the senate for 14 years.
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we had gone from a unanimous confirmation process for justice o'connor to a more contentious process for chief justice all- of the bourke and thomas nominations. the attacks had become increasingly heated. increasingly personal. by all appearances, we were on the road to the abyss. then something interesting happened. we took a step back. consider the next two supreme court nominations. ruth bader ginsburg and stephen breyer. both of them are very interesting justices on the united states supreme court. there are friends from the katrina days. both were well-known liberals before joining the bench. ginsburg was the aclu g-- generl
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council and breyer had a been kennedy's chief counsel and they had solid reputations on the court of appeals and knew them and i helped them. so when president clinton called me in 1993 to ask my views on who he should nomination to the supreme court, i suggested ginsburg and breyer because i was sure he would pick the most left wing nut cake he could find. they were certainly not the nominees i would have chosen, had i been president. but as the ranking member on the senate judiciary committee at the time i thought it was important to try to work with the white house to dial back the problems with the confirmation process. and the bitterness that was existing and the rancor he escalating for so long and president clinton nominated justices ginsburg and breyer.
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both had smooth confirmations and were confirmed overwhelmingly by both democrat and republicans. justice ginsburg's confirmation vote was 90-3. justice breyer's was 87 had the 9. and so after the all-out partisan attacks on bourke and thomas, republicans took a step back from the brink. now i've been criticized by some for my re-- my role in suggesti ginsburg and breyer and to ch chnt -- to clinton and i was worried who he would vote. we could not block president clinton's nominees. so i was interested in getting the best people we possibly could. and those two were in my book as good as you could get from that administration. but we could work with the other side to stop the slide into the abyss and that is what we did. the confirmation hit a pause.
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things were relatively calm at lower court level as well as pretty much of clinton's presidency. there was some snifing at the fact the process was taking long longer practice and that started under bush and they are bipartisan, if there was a role call vote rather than a voice vote or unanimous consent agreement. let's take a quick look at d.c. circuit. the most important circuit court in the country. president clinton appointed three judges to the d.c. circuit. judith rodgers, david tallel and mary garland and nominated elena kagan andelina snyder but the senate did not act on their nominations following the senate
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democrat set under george h.w. bush. justi justi justice rodgers and to theel we -- and tottel were confirmed by voice vote within four months of nomination. justice garland's confirmation process was a bit different. there was a dispute at the time over where there was a -- whether there was a need for another judge on the d.c. circuit. compared to other courts of appeals, the d.c. circuit had a consent for judge and they voted to confirm judge garland 18 months after he was nominated. the majority of republicans supporting his nomination. i'm going to pause for a moment here to swap out my speech boxes.
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when you have a lecture this thorough, and of course this detailed and distinguished it takes more than one speech block. so i'm going to swap -- speech boxes at this point. after president clinton came president george w. bush. he appointed four judges to the d.c. circuit. john roberts, janice rogers, thom griffith and brett kavanaugh. their confirmation experiences were, shall we say, rather different from president clinton's nominees. recall how long president clinton's nominees had to wait between nomination and confirmation. judge rodgers waited four months and judge tattel waited 14 months and then the argument over the case load played out. but here is how long george w.
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bush's d.c. circuit nominees had to wait between nomination and confirmation. judge roberts, two years. judge brown, nearly two years. these are george w. bush's nominees. judge griffin, comparatively breakneck at 13 months and the winner of the democratic obstruction crown, judge kavanaugh, two years and ten months. judge kavanaugh waited longer between nomination and confirmation than all 12 carter and reagan d.c. circuit nominees combined. this d.c. circuit nominee leaves out an important name. miguel estrada, because he was never confirmed. he with drew his nomination after two years and four months in limbo after senate democrats filibustered his nomination seven times. for the first time, by the way.
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you'll notice i just used the f-word, filibuster. which is just as bad as the other f-word, when they use it. very important when we use it. we talk about the extraordinary delays that arose during the george w. bush years. the riv with senate democrats unprecedented use of the filibuster in judicial nominations. this is a new front in the confirmation wars. it may sound strange today, but until the early 2000s, judicial phil fill -- filibusters did not happen. prior to the george w. bush administration, there had never been a successful filibuster of the lower court nominee and there had never been a
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successful filibuster of any nominee with support. that changes during the bush years and precipitated a decline of the judicial confirmation process. all of my work -- or all of the work my republican colleagues and i had done during the clinton administration to restore a semblance of bipartisanships with blown up in an instant. it became all about warfare once again. no good deed goes unpunished, as you know. just look at the confirmation votes on president bush's d.c. circuit nominees, john roberts had a voice vote. good for him. janice roberts brown, 56-43. a black woman who clearly was a very interesting and good person. only one democrat supported her. tom griffith, you have to go a long way to find someone like
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that but of course he's from utah and that helps. he was confirmed 73-24. the democrats split roughly even. brett kavanaugh 57-36 only four democrats supported him. it's a disgrace. for the first time in history near party line votes for the d.c. circuit and contrast that with the eight reagan appointees, all but one of whom were confirmed by voice vote or unanimous consent. the confirmation wars were back to full swing. let's turn back now to the supreme court. president bush appointed two justices to the court. the first was john roberts. roberts confirmation had fewer fireworks than some previous nominations because he was replacing chief justice renquist. he was not expected to change the ideological balance of the court. more over, democrats knew there was another nomination coming
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that would change the balance of the court. at the time chief justice roberts had his confirmation hearing, there were actually two -- actually two supreme court openings. renquist and justice o'connor. renquist opening would be filled first. connor second. replacing renquist with another conservative would not honor the court's ideological makeup but replacing o'connor with a more conservative justice would. i believe that democrats held their fire on roberts because they knew a second more consequential nomination was coming. they wanted to be able to say, look, we voted for roberts, we're not partisan. roberts was reasonable, but this new nominee, he or she is different. they didn't know who it was. he or she is unacceptable. and so roberts was confirmed
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relatively easily by a vote of 78-22. hard to believe that 22 people voted against him. i would note however that his confirmation vote did represent a decline from justice ginsburg 96-3 vote and justice breyer 87-9 vote. as you recall, president bush made two nominations to fill justice o'connor seat. first was harriet myers who with drew following opposition from conservative groups themselves. the second third circuit judge samuel alito was confirmed. his confirmation experience was different, however. we'll talk about a really fine guy but it was different from roberts because alito would be replacing justice o'connor. the court's long-time, quote, swing vote, unquote. democrats are much more pointed in their attacks in particular
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they dug up a 25-year-old job application to which aleta had li -- listed membership to concerned alumni of princeton. makes you sick. you have to laugh about some of this stuff. even when it became clear that alito knew nothing of the groups controversial positions. democrats kept up at tack. the criticisms of the justice aalito so personal that his we've briefly left the confirmation hearing in tears, i know because i went out to console her and left the confirmation hearing at the same. she was a wonderful woman. and justice alito was confirmed but not before democrats tried to filibuster his nomination. note that no republicans had tried to filibuster justice
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ginsburg or breyer, even those who oppose the nominations did not try to prevent an up or down vote. but as we've already seen with the d.c. circuit, republican efforts during the clinton years to dial back the partisan warfare were met with the back of the hand once the republican was back in the white house. the filibuster failed. and alito was confirmed 58-42. could you imagine? 42 of those bozos voted against him. i certainly shouldn't treat them like that. but the bastards would be a better word. [ laughter ] [ applause ] >> don't think i should have said that either. i just couldn't help myself. only four democrats supported this confirmation. the lowest number of opposing party votes for a supreme court
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nomination in all of my years in the senate up to that point. even justice thomas, even him, received 11 democratic votes for confirmation and that is after the most contentious process in american history. so clarence you did well. >> [ inaudible ]. [ applause ] >> and that is why he does well. president bush was filled by president obama. given the deterioration of the confirmation process during bush's time, one might have expected the republicans to give president obama's supreme court nominee a nasty reception. but that didn't happen. republicans found much to on the to in sotomayor and elena kagan and including sotomayor suction
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in numerous speeches that a, quote, wise latino woman, unquote, would better make judicial decisions than a white male republican, that also expressed deep concern about kagen's decision as dean of harvard law school to ban milt recruiters from campus. but they didn't launch a withering personal attack or assault. the democrats had leveled against previous republican nominees. they didn't try to filibuster their nominations. republicans like sotomayor and kagan had questions to be sure but they did not try to destroy them as was the want of the democrats. the confirmation votes were 68-31 for sotomayor and nine republicans in support and 63-37 for kagen, with five republicans in support. sotomayor and kagen both received more votes from republicans than alito received from democrats. keep that in mind next time
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democrats try to pin the blame for the confirmation wars on the gop. i'll say just a few words about president obama's d.c. circuit nominees. president obama appointed four judges to the d.c. circuit. lawson, patricka mallet, cordelia pal yard and robert wilkins. compared to the way senate democrats treated president bush's d.c. circuit nominees, the confirmation process for president obama's first nominee, judge evason was a walk in the park. he was confirmed 11 months after the nomination but a vote of 97-0. not a single republican opposed his nomination. now compare that to the vote on president bush's d.c. circuit nominees. 43 no votes for judge brawn and
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23 no votes for judge griffith and 36 no votes for judge kavanaugh. you would have thought it was the 1990s again. president obama's other d.c. circu circuit nominees were confirmed after the senate democrats changed the rules. and in order to eliminate the filibuster for lower court nominees. the hubris of this move was quite something. it was democrats, recall, who first deployed the judicial filibuster ten years earlier to block president bush's nominees. now that the shoe was on the other foot, and a democrat was in the white house, senate democrats had no compunctions about changing the rules to suit their needs. as you could imagine, senate republicans were furious. the result was nearly party line votes on president obama's other d.c. circuit nominees, or
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appointees. i mention that one of president obama's d.c. circuit nominees kate lan helliggan with drew her nomination after a weight of two years and six months. if you want, i suppose you could criticize republicans for holding up her nomination for such a lengthy period of time but it was not anything different from what the senate democrats did to john roberts or miguel estrada or john is rodgers brown or brett kavanaugh. and i haven't even mentioned peter kaiser, who i might add president bush nominated to the d.c. circuit in 2006, but never even received a floor vote. president obama had one other judicial nominee who bears mention. mary garland. garland's name has become a rallying cry for our friends on the left. and a good one to rally behind
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because garland is a very good person and a very good judge, by the way. president obama nominated garland to the supreme court in march 2016. eight months before the 2016 presidential election and one month after the primaries had already begun. it had been a hundred years since a supreme court nominee had been confirmed in a presidential election year after voting in the election and it had started. so republicans made the entirely justify position not to process garland's nomination. following a policy they laid out 25 years earlier. and so doing, they did not seek to destroy or tear down judge garland, which she shouldn't have. they didn't attack his character or try to sully his good name. they simply did not process his nomination. compare that to what democrats did to alito and thomas and vor
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eck and renquist because we know donald trump won the 2016 election and nominated neil gorsuch. his hearing followed a path similar to the hearings for chief justice roberts. gorsuch, a conservative, had been nominated to fill the seat of justice scalia, also a conservative. meaning his nomination was unlikely to change the balance of the court. democrats made some effort or should i say efforts to distort gorsuch's record. we heard endlessly about a grozz -- about a frozen trucker, the most video thing i ever heard, but we didn't see this sort of attack or these sort of personal attacks since alito and thomas. we did, however, see a filibuster. now that the shoe was back on the other foot, democrats were more than happy to use the
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filibuster to block a republican nominee. so following the democrats set by obama during the democrat years, they prevented a minority party from blocking. gorsuch was confirmed 54-45 with only three democratic votes. the number of democrats willing to support a republican supreme court nominee continued to fall. that brings us to brett kavanaugh. less said about recent events the better as far as i'm concerned. but i would like to highlight two points about the kavanaugh confirmation. first it represents a sort of culmination of everything that the confirm wars had been building to over the past 30 years. the bourke hearings gave the villification and defamation coupled with gross distortions of the nominee's record. the thomas hearings gave us
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character assassination and the politics of personal destruction. we saw elements of both of these approaches in subsequent confirmations, particularly the alito confirmation. but the kavanaugh confirmation is when everything finally came together. yeah, the outlandish misrepresentations of pretty much everything the nominee had ever said coupled with the most vile personal attacks imaginable. it is no coincidence i believe that this confluence of events occurred during the battle to replace justice kennedy. the man who for many years held the key to critically important 5-4 decisions. when the stakes are high, the wolves come out. second point to highlight about the kavanaugh confirmation is how eerily it is like justice
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thomas. the nominee endures a tough hearing and comes through mostly unscathed. he appears on the path to confirmation, he has been nominated to replace a justice well to his left sending the other side into appo plexy and then on the eve of a crucial vote, allegations are leaked to the press and not just any allegations, but salacious allegations that just so happen to play into stereotypes about the nominee that many have been pushing. it turns out also that democrats have known about these allegations for sometime, but did not raise them in the earlier hearing or in private conversations with the nominee or with colleagues on the other side. they also failed to disclose the allegations to republicans for a period of several weeks and then at a late hoyer when confirmation appeared assured, the allegations are leaked to the press. throwing the nomination into doubt and dragging their feet
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even further than, i think in many respects, ever before. and dragging a nominee and his family through the mud. call it the democratic playbook. it is dishonest, it's malicious and its enormously damaging to the country. it is also something that republicans have never done to a democratic supreme court nominee. at least not during my time in office. thankfully justice kavanaugh made it through this ordeal and was confirmed by a vote of 50-48. and it wasn't easy. because some of us really had to dig in and dig our heels in and make sure we could get him through. only one democrat supported his confirmation. that is the lowest ever for a republican supreme court nominee yet. very nearly to the point of partly line supreme court confirmations. from the unanimous vote for justice o'connor to the
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two-thirds vote for chief justice renquist, to the near party line vote for justice kavanaugh, if you want to talk about the decline of the judicial confirmation process, that's it. in a nutshell. and unless we forget about the lower courts, the decline is accelerating there as well. president trump's one d.c. circuit nominee so far, greg katzis was con fixed -- was con 51-49. again nearly party line. we're seeing roll call votes on every single court of appeals nominee. no kidding. controversy on every single nominee. and votes on nearly every district court nominee as well. we've gone from the world of voice votes and unanimous eight d.c. circuit nominees to
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straight party warfare up and down the entire federal judiciary. it is all scorched earth all of the time and it is terrible. i hope you found tonight's history lesson interesting. my goal tonight has been to share with you my perspective in how the judicial confirmation process has changed for the worse during my time in the senate. there is blame on both sides, i admit. though i think a fair assessment of the facts show a vast majority of the blame lies with one side in particular. and it is not my side. [ laughter ] >> as you all know, it is not our side. but that is an argument for another day. i worry that those entering politics today, and in my many senate colleagues who haven't had the long tenure i have, think that it is always been this way.
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that it has always been a pitch battle over every nomination and that is nuclear war forever. but it hasn't. not until 30 years ago did it engulf the supreme court confirmation process. and with the lower courts, it is even more recent inferno. i remember the days before the fire, the days of unanimous confirmation votes, the days of voice votes and unanimous consent even for d.c. circuit nominees. i wish we could get back to those days. i thought they were much better days than the current days. things are just so nasty right now. and unfortunately, i don't see a way out of it. not as long as both sides are engaged in all of that warfare. and by the way, i think almost all of this has come from roe v. wade. you talk about a stupid dumb ass decision. i should have said --
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[ laughter ] >> first of all, it had nothing do to do with the law. it is an important issue. there is no question. and a good percentage have to be concerned about those issues. but there was no reason for the court to do that. and frankly it has led to all kinds of conflicts and c confrontations ever since. it is not just roe, but it is other cases but that is the main one that caused us problems in the country. and the only hope i have is that someone some day will take a step back and say enough. let's hit a pause and try to work together again. that is what i did with president clinton. and i think it helped. did i vote for some nominees i wouldn't have chosen if i had been president? yes. but i did under the expectation when the shoe was back on the forge fo-- on the other foot, t
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other side would resip kate. that did not happen. we went from the clinton years straight to the partisan warfare of the bush years. not much trust left on either side. certainly there is very little trust on the republican side. not after the complete almost mindless obstruction we've seen from the senate democrats these last two years. if things are going to improve, it will take some real effort on all of our parts. that rebuilding trust and perhaps a leap of faith or two. the last time we saw this is when the minority of the senate decided to work with the white house to give the supreme court nominees a fair shake. i led that effort by the way. i think it was good for the country. i'm hopeful that something like that could happen again. however, i can't say that i'm optimistic that it will. but things can change. because if anything harvey
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denton likes to say, the night is darkest just before dawn. well, i want to thank you again for the honor of being here tonight. this organization is really important to me. they have done a spectacular job over the years and i am very grateful for all of the work they've done and all of you for the support that you've given to it. it has been a privilege in my life to be a united states senator for 42 years. i can't say that i have loved being here every day of those 42 years. but i have really respected the privilege that i've had of working for you for 42 years. and i hope a- i hang them up i'll still be able to weigh in and help with the problems that we'll have in the future. i just wish we could find some way of ending the total partisanship that has erupted over the last number of years.
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the heritage foundation is a critical information. i want to personally honor all of you for supporting the heritage foundation and showing up here tonight. you're part of really helping maybe change this thing and turn it around. but again, i'm willing to fight. i think you are, too. we're not just going to let them walk all over us. and we're going to try and keep this country in the constitutionally sound manner that it has been over all of these years. god bless all of you. thank you so much. [ applause ]
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>> senator, that was an outstanding historical analysis of the confirmation process. and i think as most of us feel as you do, that changes have to be made. but the first step to make constructive changes is to define the problem and coy say without any doubt, you have defined it for us tonight. thank you. [ applause ] >> it has been our tradition to make certain presentations and so if you'll be -- bear with us a moment, the first is the statue of justice. the joseph story history as i mentioned earlier this evening and his ex position of the law of this country was one that
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achieved great acclaim at the time. and one of the things that was particularly impressive about joseph's story was the even-handed way in which he wrote about the law and as a just is dispensed justice for this country. and so this statue of justice we hope will be in your new office, wherever it is. and with a reminder of -- >> [ applause ] >> and since you said that you're not going to fade from the scene, but will be very active in the future, we thought you should have copies of the commentaries -- both the important book that brought joseph's story to attention and these are the commentaries on the constitution written by joseph story. >> thank you so much. [ applause ]
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>> and joseph story was very smart. he not ome wrote the big book, but he also wrote the cliff notes. and so here is a familiar ex-position of the constitution of the united states by joseph story. i'm proud to say i have the privilege of writing a forward to this. [ applause ] >> thank you, key james for being with us and thank you, senator, for all you've done in your history of 42 years. and so we wish you the best of the luck in the future but don't forget heritage and come back often. we want to see you again. [ applause ] >> ladies and gentlemen, please in your seats until the senator and mrs. james and the distinguish parties in front
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leave and at that time john malcolm has a few instructions and ideas for you. [ applause ] [ laughter ] [ applause ]
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funeral ceremonies and services for former president george h.w. bush begin today on c-span. at 11:30 a.m. eastern, the departure of the casket from houston and at 3:30, at rival at joint base andrews in maryland and then at 4:45 the arrival at the u.s. capitol where his remains will lie in state at the capitol rotunda and then on wednesday the coverage of the departure from the u.s. capitol and at 11:00 a.m. eastern the funeral service at the national cathedral. the state funeral for president george h.w. bush. watch our live coverage on c-span or c-span.org or listen on the c-span radio app. when the new congress takes office in january, it will have
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the youngest, most diverse freshman class in recent history. new congress, new leaders. watch it live on c-span starting january 3rd. >> this week on the communicators, xavier becerra on monitoring the california $385 billion technology industry. >> general, are the googles and facebooks of the world too big in your view. >> i think you could look at the companies that are becoming very large and wonder if they're getting to the point where we have to take a closer look. but because the internet is a different animal, we used to deal in widgets, now we deal in digits. and so it is a very different thing. one you could always touch, the others is a bunch of zeros and ones and how you tackle that is what we have to get a grip on. but when we do, i think then
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we'll be able to answer that very clearly. is anyone being anti-competitive, is anyone becoming mon on liftic to the point where our anti-trust laws take effect. and do we have to take a closer look at anti-trust laws to make sure they've adapted to meet the news of the new internet world. >> watch the communicators tonight at 8:00 p.m. eastern on c-span 2. next jim parker talks about the department mission including addressing high drug prices. the opioid crisis and implementing a values based health care system. this is about a half hour. we're really privileged to have with us today jim parker, who is senior adviser to the secretary of health and human services for health reform. so

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